David Calhoun v. Cambridge, City of - Law Department (SPR 20232960)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2024 SPR23/2960 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of David Calhoun appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2023, Mr. Calhoun requested the following records: [1.] Total costs expended in legal costs and professionals fees pursuing the 40B Housing project 104 Stony Brook Weston ... [2.] ... a copy of the “authority” to take on the expense and position that the City of Cambridge opposes Affordable Housing at the 104 Boston Post Road, Weston address. [3.] ... the minutes of the department/board meeting that authorized the City to oppose the affordable housing. The City responded on November 29, 2023. Unsatisfied with the response, Mr. Calhoun petitioned this office and this appeal, SPR23/2960, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Seah Levy SPR23/2960 Page 2 January 4, 2024 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s November 29th Response In its November 29, 2023 response, the City denied access to the records pursuant to Exemption (d) of the Public Records Law and attorney-client privilege. The City further referenced ongoing litigation in support of denying the request for records. Identity or Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Calhoun’s interest in obtaining the records shall have no bearing on the public nature of the records. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC

Seah Levy SPR23/2960 Page 3 January 4, 2024 concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its response, the City asserted that that “... Exemption G. L. c. 4 § 7(26)(d) of the Public Records law, ... protects records which are the subject of ongoing internal policy deliberations within an agency. These records are the subject of ongoing litigation in the matter of City of Cambridge v. The Housing Appeals Committee, and 104 Stony Brook, LLC, Docket No. 2381CV02104. Courts and the Supervisor of Public Records have held that records concerning ongoing litigation fall within Exemption (d) of the Public Records law. See Lafferty v. Martha’s Vineyard Comm’n, No. 03-3397, 2004 WL 92712, 3 (Mass. Super. Ct. Apr. 9, 2004); Kent v. Commonwealth, No. 982693, 2000 WL 1473124, 3 (Mass. Super. Ct. July 27, 2000); Letter-Determination of the Supervisor of Public Records, SPR13/159, Sept. 20, 2013, at pp. 1-2. Furthermore, you are a Principal of 104 Stony Brook, LLC and therefore directly involved in this litigation.” Based on the City’s response, I find that it has not met its burden of specificity to withhold the records, in their entirety, pursuant to Exemption (d). The City is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, the City has not explained how the records constitute opinion work product prepared in anticipation of litigation. As a result, I find the City has not met its burden to withhold the requested records under Exemption (d). Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460.

Seah Levy SPR23/2960 Page 4 January 4, 2024 Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its response, the City stated that it “... denies the request for the requested items pursuant to Attorney-Client which protects communications between the City of Cambridge and Legal Counsel as they pertain to the rendition of legal advice. See Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007).” Although the City claimed that the requested records are protected pursuant to attorney- client privilege because of the “rendition of legal advice[,]” I find that the City must clarify that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such and that the communications were made in confidence and that the privilege as to these communications has not been waived. Further, the City must provide the privilege log in accordance with G. L. c. 66, § 10A(a). Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Although the City claimed that the requested records are related to ongoing litigation known as the matter of City of Cambridge v. The Housing Appeals Committee, and 104 Stony Brook, LLC, Docket No. 2381CV02104, it is unclear how all the requested records are the subjects of disputes in the ongoing litigation. The City must clarify. Conclusion Accordingly, the City is ordered to provide Mr. Calhoun with a response in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Calhoun may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1).

Seah Levy SPR23/2960 Page 5 January 4, 2024 Sincerely, Manza Arthur Supervisor of Records cc: David Calhoun